The claimant was pursuing a range of claims including constructive dismissal and discrimination. During the course of the proceedings she made various allegations about the tribunal of bias and corruption and seeking recusal by the judge. The respondent made an application to strike out the claims as a result of this and other conduct by the claimant but this was refused by the tribunal. In the course of making that decision the tribunal had considered whether a fair trial was possible so the claimant filed an appeal broadly on the grounds that a fair trial was not possible for her in front of this tribunal.

HHJ Auerbach agrees with the ET's decision and in his summary, sets out below, provides a useful review of the legal position in such circumstances:

*"Where, on a strike-out application, the tribunal considers that a party has conducted the proceedings in a scandalous, vexatious or unreasonable manner, but their conduct is not so serious as to mean that they have forfeited their right to have their case heard, even if it is still triable, the tribunal needs to consider whether the matter is still capable of a fair trial, approaching that issue in line with the overriding objective (Emuemukoro v Croma Vigilant (Scotland) Limited [2022] ICR 327 at [19]). Bolch v Chipman [2004[ IRLR 140 suggests that, in such cases the tribunal should ask first whether the matter is incapable of fair trial, and, if it is not, then whether a strike-out is disproportionate. But in practice these two questions may be intertwined. If the conduct is found to have imperilled a fair trial, the tribunal should consider whether it has in fact done irreparable damage to the ability of the matter to be fairly tried, or whether, on consideration, other proportionate steps can be taken to address, manage or mitigate the impact of the conduct, so as to enable a fair trial to happen.

In some cases the tribunal may properly conclude that the damage that has been done to the possibility of there being a fair trial is irreparable, so that there is no alternative to striking out, as was the case in, for example, Chidzoy v British Broadcasting Corporation, UKEAT/0097/17. In others there may be an alternative solution to the problem posed by the conduct, which enables a trial to proceed or take place in a way that is still fair to both parties – as, for example, the Court of Appeal considered was the case in Blockbuster Entertainment Limited v James [2006] EWCA Civ 6843; [2006] IRLR 684. In such a case it would not be proportionate or right to strike out the claim." *